Leapfrogging the Constitution

October 17, 2011

Many of us will remember a childhood game called “leap frog.” Your classmate would run, stop, lean forward and the person running behind would leap over his playmate. After a few steps, the person who had just made the jump stopped, leaned forward and the process repeated itself. This was a fun game for elementary school children at recess time. It is more sad than ironic that there is a striking similarity between that children’s game and the process by which we nominate our candidates for president of the United States.

Iowa and New Hampshire have claimed the “right” to hold the first caucus and primary in their states, respectively. No one dare move ahead of them. Over the past several election cycles, this has contributed to calls of “unfair” from other states which have a much later, and usually lesser, role in the decision making process due to late primaries. New Hampshire and Iowa do not budge. They are determined to go first, no matter what date they have to set. New Hampshire has not yet established its date for the primary because it wants to be the “First in the Nation Primary” as dictated in their state law. Iowa has settled on January 3rd, and its caucuses are always a few days before New Hampshire. Nevada has settled on January 14th, so most likely, New Hampshire’s primary will be between those two dates.

There is no better example of leapfrogging than what has been happening in the past week. Florida moved its primary up to January 31, 2012. Then South Carolina decided to “trump” Florida by moving its primary up to January 21st. Under Nevada law, that state must hold its caucuses the “Saturday before the NH primary” and, according to that state’s website, they have set the date for January 14th thinking that New Hampshire was planning to set its primary on January 17th.

I suppose if we were to carry this insidious process out to the extreme, we could have the primary for the 2016 Presidential election before the 2012 election is over! In an effort to stop the games, the Republican Party has even threatened to penalize any state, changing its primary or caucus at this late date, with a loss of voting delegates at the Republican Convention. This makes the situation worse with even more animosity. The game of leap frog continues. Unfortunately, this is not a game.

It might be beneficial to ask, just how this enhances our nominating process to pick who may be the next leader of the free world. The candidates do not know where to campaign or when. States could be denied delegates to the convention and are pitted against other. The process has now become a political power struggle with no rules. Those states that have caucuses deny the right to vote to our servicemen and women, who are often out of their state, sometimes putting their lives on the line to defend our freedom. They deny the right to vote to the ill or disabled, who cannot be physically present to vote in person. Even where primaries are held, how can our military get an absentee vote mailed in a timely manner, when they do not even know the date of the primary or the names of the candidates running? Lost in this process is the focus on the quality of the candidates and the convenience of voters. No longer is the focus on the selection of the best candidate. It is about raw political power at its worst.

Presidential elections are, as Paul Skousen, a former CIA officer in the Reagan Administration has called them, “a two billion dollar beauty pageant.” It is a pageant with constantly changing rules and attempts by states to secure advantages over each other for profit and recognition. High up on the profit list is the news media, itself. The media shamelessly court the candidates for their advertising money, while they brutalize them in their news and editorials. Is it any wonder that the Founders warned us about the danger of political parties? Political parties have commandeered the way we nominate and elect a president, the American people seem to have acquiesced, and the media laughs all the way to the bank. Not only did the Founders warn us of the dangers of political parties, they left the term completely out of the U.S. Constitution.

When the U.S. Constitution was written in 1787, Article II, Section 1 stated the following:

“Each state shall appoint, in such manner as the Legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.”

What and who are electors? According to the debate at the Constitutional Convention regarding this matter, electors were supposed to be independent and “wise men” whose job was to “nominate” the best candidates for president. Notice that the word “nominate” not “elect” was used. The job of the electors in each state was to submit names of candidates for president. The candidate selection was to be achieved by counting the nominations. Article II clearly states that electors shall be appointed by the states, as directed by their respective legislatures, however, the method of appointing was at the sole discretion and prerogative of the legislature of the respective states. If a state wished to have its legislature simply pick the electors, it could do so, or, it could it could have the voters of the state participate in the election of these individuals. Whatever the decision, one thing was clear. It was the states, not the federal government, and certainly not political parties, who would make the decision. The Founders were intent on maintaining the principle of federalism.

It did not take long for politics to diminish the spirit and intent of the Founders. George Washington’s stature kept him above politics and he easily won two elections with little partisan bickering or demagoguery. However, in the election of 1796, between Adams and Jefferson, it began to come unglued. Adams was the old line Federalist and Jefferson represented the more populist agrarian element of American society. Under the Constitution, incumbent officeholders could not be electors and this antagonized the federalists. The entire process deteriorated into wrangling to select electors based on allegiance to either Jefferson or Adams as opposed to their selection based upon their independence. Adams barely won, but politics was now here to stay. The election of 1800 was even worse when Aaron Burr and Thomas Jefferson, both Democratic-Republicans, tied in the electoral count at 73 votes each, and incumbent Federalist, John Adams, was third with 65 votes. It took 36 ballots and the intercession of Alexander Hamilton to finally select Thomas Jefferson as the third President of the United States. This occurred when Hamilton urged his supporters to desert one of their own, John Adams, to support Jefferson, who was the lesser of two evils between Jefferson and his longtime nemesis, Aaron Burr.

The political wrangling in the elections of 1796 and 1800 led directly to the ratification of the 12th Amendment to the Constitution in 1804. The amendment is much too lengthy to include it in this commentary. However, in essence, the passage of the 12th Amendment is a political decision that violates the spirit and intent of the original document. The primary function of the electors, in the language of this amendment, has transitioned from NOMINATING candidates and evolved into the FINAL SELECTION of the presidential and vice-presidential candidates. The 12th Amendment legitimized the political parties’ entry into the selection of our president and it was used by many to dwell upon what was “wrong” with the Constitution and how to “fix it” as opposed to reaffirming the original intent of the Founders to have electors nominate rather than elect.

It would be easy to argue that states do in fact follow the Constitution today because they have agreed to conduct presidential elections for electors pledged to a particular candidate from a political party. Since these electors are pledged to vote for the candidate who “wins” the election, then the spirit and intent of the Constitution is followed. Those who make this argument either do not understand the Constitution or deliberately attempt to misguide. Electors, under the intent of the Constitution do not elect, they SELECT the candidates for President. The election should occur when the ballots are counted in the House of Representatives after the nominating process has taken place. This, of course, is not what happens in our presidential elections today. We talk of the “Electoral College” and we watch the ballots counted on “election” night to see who wins the most “electoral votes” and, therefore, become the President elect of the United States. The Framers intended for the electors to choose wisely and independently from the most qualified individuals in the nation. The best qualified is not meant to be restricted to only candidates of a political party.

If the American people wish to elect their president by popular vote and have political parties do the nominating, then the correct approach is to amend the Constitution, not ignore it. One thing is certain. Electors selected based upon their party affiliation are not independent and unbiased people. They are selected to “rubber stamp” the “election” in their state. There is undoubtedly a strong case to be made for the election of our president by direct popular vote. There is, however, not a good case to be made for doing so without a constitutional amendment. Gary and Carolyn Alder in their excellent book, “The Evolution and Destruction of the Original Electoral College,” lay out the argument for a return to original intent as succinctly as anyone could ever do it.

“The states do not need to leave the process in the hands of the political parties. It would take courage but they could reclaim their prerogative and control over presidential elections.

This is where education in the ‘science of government’ becomes so vital. When the people are ready to learn about freedom and what made this nation great, they will see that freedom is more important than allegiance to political party.

In our opinion, having wise Electors nominate the most qualified presidential candidates is the way to go. The best answer by far is to return to the original design of the Framers as carefully outlined in Article II of the Constitution.”

There is a serious and growing effort to do just the opposite of what the Alders propose. As a matter of fact, it takes us beyond the current method of presidential elections and calls for a law to throw out the Electoral College entirely and elect the president by popular vote. This is not a constitutional amendment that this movement is advocating. Instead it calls for an “Agreement Among the States” compact, which would take effect only when the member states control a majority of electoral votes (270). Thus, whichever candidate wins the popular vote in all 50 states will be the President elect regardless of the Electoral College count.

Since we still have free speech in this nation, proponents of the current political street fight primary mess can continue to defend it. Others may side with the Alders on original intent. Some may favor discarding the Electoral College entirely. However, something that is not a justifiable direction for our nation is leapfrogging the Constitution.

Former Senator Bob Smith (R-NH), known as “Senator Bob,” has joined Accuracy in Media as a Special Contributor. His columns and commentaries on media and politics will be available on a regular basis on the AIM website at www.aim.org. He can be contacted at senatorbobsmith@comcast.net.